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State Legislative Trends: Hostility to Abortion Rights Increases

April 12, 2011
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Through the end of March, legislators have introduced 916 measures related to reproductive health and rights in the 49 legislatures that have convened their regular sessions. (Louisiana’s legislature will not convene until late April.) By the end of March, seven states had enacted 15 new laws on these issues, including provisions that:

expand the pre-abortion waiting period requirement in South Dakota to make it more onerous than that in any other state, by extending the time from 24 hours to 72 hours and requiring women to obtain counseling from a crisis pregnancy center in the interim;

expand the abortion counseling requirement in South Dakota to mandate that counseling be provided in-person by the physician who will perform the abortion and that counseling include information published after 1972 on all the risk factors related to abortion complications, even if the data are scientifically flawed;

require the health departments in Utah and Virginia to develop new regulations governing abortion clinics;

revise the Utah abortion refusal clause to allow any hospital employee to refuse to “participate in any way” in an abortion;

limit abortion coverage in all private health plans in Utah, including plans that will be offered in the state’s health exchange; and

revise the Mississippi sex education law to require all school districts to provide abstinence-only sex education while permitting discussion of contraception only with prior approval from the state.

In addition to these laws, more than 120 other bills have been approved by at least one chamber of the legislature, and some interesting trends are emerging. As a whole, the proposals introduced this year are more hostile to abortion rights than in the past: 56% of the bills introduced so far this year seek to restrict abortion access, compared with 38% last year. Three topics—insurance coverage of abortion, restriction of abortion after a specific point in gestation and ultrasound requirements—are topping the agenda in several states.

At the same time, legislators are proposing little in the way of proactive initiatives aimed at expanding access to reproductive health –related services. This stands in sharp contrast to recent years when a range of initiatives to promote comprehensive sex education, permit expedited STI treatment for patients’ partners and ensure insurance coverage of contraception were adopted. For the moment, at least, supporters of reproductive health and rights are almost uniformly playing defense at the state level.

Insurance Coverage of Abortion

Not surprisingly, given the intensity of the debate nationwide, the question of insurance coverage of abortion is a front-burner issue in many legislatures. During the first quarter, legislators in 23 states introduced 57 measures on the topic. Many of these measures would restrict coverage of abortion in all insurance plans in the state, while others would apply specifically to the health insurance exchanges envisioned under health care reform.

Legislators in 11 states (AL, IN, KS, MI, NE, OK, OR, SC, TX, UT and WV) have introduced 18 measures that would restrict abortion coverage under all private health insurance plans. So far this year, one measure has been adopted by a legislative chamber in South Carolina and one has been enacted in Utah. This new law limits coverage to cases of life endangerment, “serious risk of substantial and irreversible impairment of a major bodily function,” fetal defect, rape and incest; the law does not specifically require that individuals be allowed to purchase coverage through a rider. Including the new Utah law, six states restrict private abortion coverage.

Coverage under health exchanges has garnered even more legislative attention. During the first quarter, legislators in 23 states (AL, AR, FL, GA, ID, IN, IA, KS, KY, MI, MT, NE, NJ, OH, OK, OR, PA, RI, SC, TX, UT, VA and WV) introduced 49 measures that apply to exchange coverage. (Of these, 14 are within the broader measures listed above that would affect all health plans in the state.) Measures have passed one legislative body in five states (AR, IN, OK, SC and VA); both chambers in Idaho and Montana; and one new law has been enacted in Utah subjecting coverage on the exchange to the same restrictions applied to other plans in the state (see above). With the addition of the new Utah law, six states restrict the insurance policies that will be offered through insurance exchanges created under health care reform.

Gestational Limits for Legal Abortion

In 2010, Nebraska enacted one of the most stringent abortion restrictions in recent years. The law bans abortion at 20 weeks’ gestation based on the presumption that a fetus feels pain at that point; after 20 weeks, abortions are permitted in the state only when necessary to save the woman’s life or when there is a “serious risk of substantial and irreversible physical impairment of a major bodily function.” Efforts by antiabortion activists in other states to replicate the measure are bearing fruit in this legislative session. This year, legislators in 17 states (AL, AR, FL, GA, ID, IN, IA, KS, KY, MD, MN, MS, NJ, NM, OK, OR and SC) have already introduced 35 measures patterned after the Nebraska law.

Of the measures that have been introduced, 27 parallel the Nebraska law and seek to ban abortion beginning at 20 weeks. Two would ban abortions beginning at 18 weeks’ gestation. The remaining six would restrict abortions after 22 weeks. Twenty-nine of the bills contain the extremely narrow health exception included in the Nebraska law. The remaining six bills would permit a slightly broader exception, generally permitting abortion in cases where the woman’s mental health is threatened.

Five measures that mirror the Nebraska law by seeking to ban abortion at 20 weeks’ gestation except in extremely limited circumstances have received significant legislative consideration. Most notably, the Kansas legislature approved a bill that is now awaiting signature by Gov. Sam Brownback (R), a longtime abortion foe who was a champion of antiabortion causes during his 16-year tenure in the U.S. Congress. Similar measures were approved by a legislative chamber in Idaho, Indiana, Iowa and Oklahoma.

Ultrasound

So far this year, legislators in 13 states have introduced 22 bills seeking to mandate that a woman obtain an ultrasound procedure before having an abortion. Bills in seven states (AL, IN, KY, MT, OH, RI and TX) are very similar to a law enacted last year in Oklahoma that requires a woman to undergo an ultrasound procedure, view the image and receive a verbal description of the fetus. Of these, proposals in Kentucky and Texas have been approved by a chamber of the legislature.

Bills in four other states (AZ, FL, MI, VA) as well as an additional measure in Texas would require the woman to have an ultrasound but then be given the option to view the image or hear the description. The bill in Texas has been approved by one house. (On April 2, the Arizona governor signed measures that require a provider to perform an ultrasound on a woman seeking an abortion and to offer her the option to view the ultrasound image, listen to a detailed description of it and to get a picture of the image.). Finally, bills in Arkansas and Connecticut would require provision of an ultrasound but would not mandate that the woman be given the option to view the image or hear a description.

Moreover, the legislative proposals in Kentucky and Texas blurred the line between two previously separate issues: requiring an ultrasound prior to an abortion and imposing a waiting period on a woman seeking an abortion. Although the 2010 Oklahoma law had a waiting period, it required that only two hours elapse between the ultrasound and the abortion. The measure that was approved by the Senate in Kentucky would have required 24 hours between the two procedures; the House adjourned for the year before considering the measure. Two measures in Texas include waiting periods: one would mandate a 24-hour wait and the other would require that between 24 and 72 hours elapse; each of the bills has been passed by one house of the legislature, and conferees are working to resolve the differences between the two measures.